Section 213 of the Labour Relations Act 66 of 1995 define an employee as:
“(a) any person, excluding an independent contractor, who works for another person or for the state and who receives, or is entitled to receive, any remuneration; and
(b) any other person who in any manner assist in carrying out or conducting the business of an employer.

Although the wording of section 213 suggests that the employment relationship commence only when a person physically starts working for another person or the state, recent caselaw has suggested otherwise.

In the Labour Court Judgement of Du Preez v South African Local Government Bargaining Council (“SALGBC”) and Others (C147/15) [2017] ZALCCT 11, the applicant took the arbitrator’s jurisdictional ruling that the applicant was never an employee of the municipality, on review. An employment contract was offered to the applicant, who accepted it. However, before commencing physical employment with the employer, the employer relied on a suspensive condition in the employment offer to withdraw the offer of employment.

The court agreed with the applicant in finding that his employment relationship with the municipality had been terminated, and the alleged withdrawal of the offer by the municipality was tantamount to a dismissal. In setting aside, the jurisdictional ruling, the court referred the matter back to the bargaining council to be heard on the merits of his dismissal dispute, thereby ruling that an employment relationship commenced even before the applicant physically started working for the municipality.

The court thereby confirmed the judgement in Wyeth SA (Pty) Ltd v Mangele & others 2005, 6 BLLR 523. In Wyeth, an offer of employment was made per an employment contract which was accepted and signed by Mangele. However, prior to commencing with employment, the employer terminated the contract of employment, having deemed Mangele to act dishonest in purchasing a vehicle, which was part of his remuneration package. Mangele reported for duty on the day agreed to in the employment contract and was advised that he was not employed at Wyeth SA.

The employee deemed this as an unfair dismissal, and the commissioner agreed by ruling that Mangele had become an employee the moment he accepted Wyeth’s offer of employment. Wyeth referred the matter to the labour court relying on an earlier labour court finding in Whitehead v Woolworths (Pty) Ltd (1999 20 ILJ 2133), that a person who is a party to a contract of employment, but who has not yet commenced working, is not an employee for purposes of the LRA.

Despite its earlier finding, the Labour Court and thereafter the Labour Appeal Court upheld the decision by the CCMA; that Mangele had achieved legal employee status the moment his employment contract was signed. The Labour Appeal Court held that “common sense, justice and the values of the Constitution would be best served by extending the literal construction of the definition of an employee in section 213 of the to include someone who had concluded a contract of employment which would commence at a future date.”

It can therefore be concluded that the employment relationship commences on the acceptance of the employment offer or on the signing of the employment contract. It is therefore not necessary for an employee to physically commence employment to qualify as an “employee” under section 213 of the LRA.

Article by: Aletta Eksteen
Dispute Resolution Official – Cape Town